Npower injunction judge: It was never meant to be used against professional photographers

Correspondence obtained by EPUK reveals that Justice Calvert-Smith, who granted the injunction used by npower against news photographers, never intended it to be used against the press.

In a written reply sent on behalf of Justice Calvert-Smith, he clarifies that the position of the court was that “although there may be occasions when photographing people might amount to harassment, it was certainly not the court’s intention to outlaw activities which do not amount to harassment.”

In a further turnaround, solicitors acting for npower have stated that it was never their intention to stop legitimate reporting of the protests surrounding npower’s controversial ash dumping at Radley Lakes, Oxfordshire.

However, EPUK understands that just three weeks ago, the same solicitors emailed the editor of the Oxford Mail advising him that the injunction would directly affect both what photographs could be taken and published by his own photographers.

How EPUK has covered the story:

16 Feb: Npower places injunction on EPUK member See here
20 Feb: The npower injunction in full See here
22 Feb: Revealed: the npower statements that persuaded a court to grant the injunction See here
22 Feb: Sqweegee: The law as an ass See here

The apparent change in position by npower’s solicitors Lawson-Cruttenden puts them embarassingly at odds with the energy giant’s own press office.

In correspondence seen by EPUK, Lawson-Cruttenden and Co, write: “Neither the court, nor for that matter the claimants, wish to prohibit any behaviour which does not amount to harassment.”

However, a spokesperson for npower yesterday maintained that the injunction still prohibited all photography of its employees and contractors, regardless of whether it was legitimate news reporting.

Yesterday, EPUK asked npower whether, given Justice Calvert-Smith’s clarification, that they now accepted that legitimate news photography which happened to include their contractors or employees would not be covered by the injunction. A spokesperson told us: “We are aware of the letter, but that is not our interpretation of what that letter says. We have asked our solicitors to look at that and see what the judge is referring to.”

When told that correspondence obtained by EPUK showed that their own solicitors concurred with the judge on this matter, the spokesperson said: “I’ll have to get back to you on that”. At the time of going to press, npower had not replied further.

Not a typical environmental campaign

On their website, Lawson-Cruttenden and Co describe themselves as “the market leader in obtaining ground breaking injunctions on behalf of individuals and corporations who have been the subject of harassment by direct action protest groups.”

They list their involvement in high profile cases, such as those campaigns where protests have been carried out by animal-rights extremists. These include Newchurch Guinea Pigs, during which the remains of a relative of the site owners was allegedly disinterred up and hidden; the Oxford lab protests, where some of the known protesters had convictions for terrorism offences, and Huntington Life Sciences, where the harassment included death threats and fake bombs being sent to workers.

By comparison, the most serious allegation presented to the court to support the npower injunction said that a security guards was hit on the leg by a van driven by a protester, although a separate statement records that the protester involved disputes this. In any case, the security guard told the court in his statement that there was no bruising on the leg afterwards.

The least serious allegation records a guard stating that he overheard a protester describe the private security firm as “the enemy”. In his statement he contractor told the court that this made him “only slightly afraid”

Unlike the above three campaigns, none of the principal six named individuals named on the injunction appear to have any involvement with any extremist groups. They included a vicar, and a 67 year old physician.

“We didn’t know Arbib was a press photographer” claim

Most surprisingly, npower’s solicitors have agreed with Justice Calvert-Smith that EPUK member Adrian Arbib should never have been served with an injunction. In correspondence obtained by EPUK, they say he was served in what they describe as “an abundance of caution”. At the time, Arbib was only the second person to have been served with the injunction.

They go on to add “When he was served, it was not clear to the injunction servers who he was”, with the implication that had they known he was a legitimate member of the press, he would not have been presented with the injunction.

Arbib produces his press card while being filmed by the Npower security guards

However in the video shot by Arbib at the time, a version of which can be seen at Sqweegee’s blog he can seen and heard clearly identifying himself as a member of the press as the injunction is served.

He can be heard telling the solicitors “Excuse me, I’m a member of the press…does that count for anything ?” . The solicitor replies: “I refer you to the terms of the injunction”.

After seeing a copy of Arbib’s NUJ-issued national press card. the solicitor attempts to cover up the lens of the video camera, saying: “You have been served with a copy of the injunction. You cannot take any more photographs of me”.

Damaging week for npower

The revelations come in the week where npower has faced its most damaging publicity, with the story being picked up by national newspapers.

In the Guardian today, George Monbiot writes that the injunction is further evidence of the criminalisation of protest. “The injunction was granted on the grounds that the site’s security guards were feeling threatened by the protesters. Many of the guards are former members of the armed forces….It seems to me that the security company has hired a bunch of right cissies”

On Monday, Duncan Lamont of Charles Russell LLP warned that “These unanticipated uses of the act could fall foul of article 10 of the Human Rights Act 1998, in being a disproportionate restriction of the right to free expression.”

Last week, the Oxford Mail reported on allegations that npower contractors had deliberately destroyed a swan’s nest at the beauty spot.

Comments

A point that has been missed here is that the lone protestor camped outside Sandles until Feb 14 was being far more harassed by the security guards than they could ever have been by him. He alleged that the guards had threatened to pee in his water while he was asleep, and that they had referred to him as an ‘animal’ that should not be fed.

The big difference was that he did not have access to smart-arse lawyers, high court judges and a private police force. The asymmetry in the law as was applied in this instance is staggering.

Following his detention and arrest, that protestor nearly ended up dead, and sustained very serious injury likely to result in permanent disablement. That is the price he paid simply for wanting to save what he believed to be a piece of natural landscape worth protecting.

Comment 1: Hans Offarlakes, 9 March 2007, 12:11 AM

Hi. A couple of intresting snippets. I understand that Npower did not have permission from the Forestry Commission to kill all the trees and the County Council have admitted that they only granted planning permission because they were frightened of being sued if they refused it. Ironically, they had every basis in law in which to refuse it previously but would most definitely lay themselves open to legal action now if they withdrew it. Corruption and incompetance on the part of Oxfordshire CC is the reason why matters have got this far. Luckily the press have got proper wind of the situation and Npower are seriously on the back foot. We may yet beat the vile bastards.

Comment 2: Bob Eeles, 10 March 2007, 10:45 PM

While Judge Calvert-Smith has unequivocally stated that the injunction is not intended to prevent journalism npower’s lawyers have decided that they need to reinterpret that in the most obnoxiously arrogant way possible.

Lawson- Cruttenden, the lawyers seen so revealingly in our Law as an Ass movie, have today written:

“RWE Npower is prepared to agree that it will not seek to enforce Clause 5.2 of the Injunction against Accredited Media. For the purposes of this Protocol ‘Accredited’ will mean:

- media possessing a valid card demonstrating membership of the National Union of Journalists or

- media possessing a business card demonstrating affiliation to an official media organisation verifiable by telephone call. This is provided the Accredited Media comply with the numbered conditions below.

1 Accredited Media to inform RWE Npower In advance of attendance at Radley Lakes (5$ defined In the Injunction), The prior notification should be given to RWE Npower’s press telephone (0845 020 2607).

2 On arrival at Radley Lakes, appropriate accreditation should be produced to the nominated RWE Npower representatives at Sandles House who are responsible far verifying such accreditation, A telephone number to enable identity to be verified should also be provided to the nominated RWE Npower representative(s)

Following compliance with I and 2 above, Accredited Media will be allowed to
photograph or video in r around Radley Lakes.

Accredited Media shall not trespass on the site of Radisy Lakes or The Sandles
property (as defined in the injunction).

5 In the event of Accredited Media capturing photographic and/or video images of employees, agents or contractors of RW npower that may, on their own or as part of a series of published images, lead to the disclosure of their identities, these images shall not be published in any form.

All other clauses in the injunction (including for the avoidance of doubt Clause 8.3) shall remain in full force and effect. RWE Npower, through its employees, agents and contractors will continue to monitor potential breaches of the Injunction.”

Clearly npower feel that they, and only they, can decide which of their objectionable practices may be covered by the press.

having just seen on channel 4 News what is happening at Radley lakes
we should make the public aware of what is happening for this is England 2007 not England 1697
it’s barbaric to say the least
it goes to show that the judge who allowed this Injunction is not fit for purpose and should be removed from office

Comment 4: Ian Holt, 20 March 2007, 07:48 PM

NPower now think they can make the Law as well as Break it. Cutting down trees without a Forestry Commission Licence, harrassing wildlife, destroying nesting habitats, trying to scare off protesters with their Injunction. Then, when they realise the mess they have got themselves into, they decide they didn’t mean to include Journalists and Professional Photographers in the injunction, but they did. Only The High Court can vary the injunction, upon application. It is not within NPowers remit to do so. Perhaps they are the ones who are now in Contempt of Court and should be prosecuted!

Npower have shown themselves to be what they really are. Corporate Bullies with no conscience.

I hope everyone has been to the Govt Website petitions.pm.gov.uk/SaveRadleyLakes to vote.

EPUK is an email group for professional editorial photographers who want to talk business. We don’t do techie stuff or in-crowd gossip. We don’t talk cameras or computers. What we talk about are the nuts and bolts of being in business - like copyright, licensing, fees and insurance.